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People United for Med. Marijuana v. Fla. Dep't of Health - 2018 Fla. Cir. LEXIS 1656

Rule:

Section 381.986, Florida Statutes (2017) unconstitutionally restricts rights that are protected in the Constitution, and so that statutory prohibition against the use of smokable marijuana permitted by Section 29 qualifying patient is declared invalid and unenforceable.

Facts:

The plaintiffs, which included invididual plaintiffs and an association that worked on their behalf, sought a declaratory judgment finding section 381.986, Florida Statutes (2017) inconsistent with Section 29, Article X [Amendment]. The plaintiffs also sought an affirmative declaration that patients qualifying to use marijuana for medical treatment for their debilitating conditions may use marijuana in the smokable form in private. The Amendment does not restrict the location of use of any form of medical marijuana other than smoking. The Amendment recognized that there was no right to smoke in public places, thereby implicitly recognizing the appropriateness of using smokable medical marijuana in private places consistent with the Amendment. The defendants contended that the legislature's powers to pass any legislation it deemed necessary for the safety, health and well-being of Floridians made the 2017 statutory revisions to section 381.986 valid and that there was no express or implied conflict with the Amendment.

Issue:

Is Section 381.986, Florida Statutes (2017) invalid as it conflicts with the Florida Constitution and prohibits a use of medical marijuana that is permitted by the amendment: smoking in private?

Answer:

Yes

Conclusion:

The court held that Section 381.986, Florida Statutes (2017) unconstitutionally restricts rights that are protected in the Constitution, and so that statutory prohibition against the use of smokable marijuana permitted by Section 29 qualifying patient is declared invalid and unenforceable. The marijuana definition incorporated in and protected by Article X, Section 29(b)(4) includes the 2014 version of section 381.986 which has continuing viability by virtue of Floridians having put it in the Constitution. Qualifying patients have the right to use the form of medical marijuana for treatment of their debilitating medical conditions as recommended by their certified physicians, including the use of smokable marijuana in private places. 

The court applied a three-prong test to find associational standing: An association has standing to bring suit on behalf of its members when (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit."

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